The Australian Competition Tribunal has today denied authorisation for the NSW Minerals Council and ten mining companies to collectively negotiate the terms and conditions, including price, of access to the Port of Newcastle to export coal and other minerals.
The Tribunal’s determination sets aside the ACCC’s decision from August 2020 which granted authorisation for collective bargaining at the port. This authorised the mining companies to collectively negotiate the details of details of a proposed 10-year deed with Port of Newcastle Operations (PNO), the port’s operator.
“We decided to grant the authorisation because we considered the conduct was likely to result in minimal detriment because participation was voluntary for mining companies and PNO,” ACCC Chair Rod Sims said.
“Collective bargaining can facilitate greater efficiencies with the sharing of the time and cost of negotiating contracts and help deliver quicker, more timely resolutions.”
In September 2020, PNO sought the Tribunal’s review of the ACCC’s determination. A review by the Tribunal is a re‑hearing of the matter.
In conducting its review, the Tribunal applies the same ‘authorisation test’ as the ACCC. That is, the Tribunal must not grant authorisation unless it is satisfied, in all the circumstances, that the conduct would result or be likely to result in a benefit to the public, and the benefit would outweigh the detriment to the public that would result or be likely to result.
“We will review the reasons for the Tribunal’s decision, which have not yet been made public, to understand why it did not grant authorisation for voluntary collective bargaining in this case,” Mr Sims said.
On 6 March 2020, the NSW Minerals Council applied for authorisation on behalf of themselves and ten mining companies to collectively negotiate with PNO in relation to the terms and conditions of access to the port. Participation in the proposed collective bargaining conduct was voluntary and did not include collective boycott activity.
They also sought authorisation to discuss and negotiate industry-wide issues, such as proposed capital expenditure at the port and the allocation of costs.
On 2 April 2020, the ACCC granted interim authorisation in respect of the collective bargaining application. Interim authorisation was granted to enable the participants to commence collective discussions amongst themselves and negotiations with PNO immediately, while the ACCC considered the merits of the application.
On 27 August 2020, the ACCC found that the conduct was likely to result in public benefits from the bargaining group having greater input into the terms and conditions of access and greater transparency around capital expenditure plans and cost allocation at the port.
As a result, the ACCC decided to grant authorisation for 10 years (as requested by the applicants), until 30 September 2030.
PNO applied to the Tribunal for review under section 101 of the Competition and Consumer Act of the ACCC’s determination. The role of the ACCC in this review was to assist the Tribunal.
ACCC authorisation provides statutory protection from court action for conduct that might otherwise be in breach of the competition provisions of the Competition and Consumer Act 2010.